Plaintiff, a former special counsel to the Borough of Englewood Cliffs, brought an action for defamation against defendants based on documents distributed to Borough residents in advance of the then upcoming election. Defendants filed applications for an order to show cause, seeking dismissal of the case and counsel fees pursuant to the Uniform Public Expression Protection Act (UPEPA), N.J.S.A. 2A:53A-49 to -61. After converting the applications to motions, the trial court denied defendants' motions, finding plaintiff sufficiently had pleaded the elements of a defamation claim to survive defendants' motions and that whether plaintiff would be able to prove those elements required further discovery.
On appeal, defendants argued the trial court erroneously had relied on only the motion-to-dismiss standard of Rule 4:6-2(e) and erred by denying defendants' motions and permitting discovery.
The court affirmed the order. The court held the trial court had properly applied the motion-to-dismiss standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(b)(i) of UPEPA and the summary-judgment standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(a) and -55(a)(3)(b)(ii) of UPEPA. The court also held the trial court had not erred in permitting discovery pursuant to N.J.S.A. 2A:53A-52(d) of UPEPA.